October 15, 2021
Consider this situation: You are having a conversation with a stranger for the first time. As they speak, their eyes shift. While the person does not appear to be nervous or anxious, their affect is flat. The story this person tells is so jumbled that you do not know where it ends or begins. Something in your gut feels “off.” It would be nice if you had more time to listen to this person, but you’re meeting someone else in five minutes. You are running out of time. If you had to determine whether this person was credible or told the truth, what would be your first impression?
Dana Leigh Marks, an immigration judge, originally posed this hypothetical. According to her, many immigration judges might encounter this person and believe that they are dishonest. If this person was an asylum applicant, their luck might run out. The Public Justice Center and allies filed an amicus brief last year in support of Cameroonian asylum applicant B.C. in B.C. v. Barr. Written by 2019-2020 Murnaghan Appellate Advocacy Fellow Dena Robinson, the brief addressed how credibility determinations can be detrimental to any asylum applicant who is a trauma survivor or is from a non-Western or non-European country (Dena reflects on the importance of the brief here).
This September, the U.S. Court of Appeals for the Third Circuit ruled in B.C.’s favor, reversing the denial of B.C.’s asylum application and ordering a new hearing for his asylum application because the immigration judge denied B.C. due process. Due process requires that an interpreter be provided to noncitizens who have limited English proficiency throughout entire removal proceedings and that immigration judges must meaningfully evaluate whether an interpreter is needed. The Court concluded that failure to take these steps can impermissibly affect an adverse credibility determination.
B.C. was a member of a political party targeted by the Cameroonian government. After witnessing Cameroonian police officials shoot and kill his brother in front of him, while the two were filming on Facebook Live, B.C. fled to the United States. Upon arriving in the United States, B.C. was placed in detention and filed for asylum. An immigration judge denied his petition for asylum after finding that his “well-founded fear of persecution” was not credible. In essence, the judge did not believe the reason for B.C.’s journey to the United States. Nor did the judge believe that the Department of Homeland Security had taken custody of his membership card which he, therefore, could not introduce at his hearing to prove his status in this political group. Furthermore, the judge failed to make a meaningful effort to determine B.C.’s proficiency in English or provide an interpreter during the proceedings.
B.C.’s trauma and a judge’s potential implicit and cultural biases add another layer to the hypothetical above. In our amicus brief, joined by the Black Alliance for Just Immigration, the Capital Area Immigrants’ Rights Coalition, and Dolores Street Community Services, we addressed the subjectivity of the credibility determinations made in the asylum application process, down to vagueness of terms such as “demeanor,” “credibility,” and “candor.” Our brief detailed how demeanor is an unreliable gauge for assessing one’s credibility because it relies on Eurocentric and white standards about how one should speak and act when in court. For example, in Western cultures, maintaining eye contact is associated with honesty. Maintaining eye contact, especially with an authority figure, can be considered rude or threatening in Eastern cultures. Our brief also addressed how trauma, like B.C.’s, changes how our brain stores information and how we verbally retell a traumatic experience. Last, our brief addressed the pervasiveness of implicit biases within the legal system generally, tracing those biases back to Eurocentric stock stories and understandings about the importance of time or the amount of context someone must share when telling a story.
It is impossible to talk about asylum and immigration in this country without acknowledging racism and white supremacy. Our brief addressed the racialization of immigration laws and enduring racial stereotypes that may contribute to an immigration judge’s implicit biases. For example, before the abolition of slavery, enslaved Africans and free Blacks could not testify against white people. When the Civil War ended, attorneys continued to make arguments in court that juries should discount or disbelieve Black witnesses’ testimony. This stereotype continues today – for instance, when George Zimmerman was on trial for killing Trayvon Martin, Zimmerman’s defense team effectively “othered” key prosecution witness Rachel Jeantel because she had difficulty reading her deposition testimony and struggled with literacy.
The decision from the U.S. Court of Appeals for the Third Circuit is an important step toward removing implicit and cultural bias from the asylum application process. We hope that this ruling will remind immigration judges to consider all of the factors that affect how they interpret an applicant’s story and make a credibility determination. Incorporating this context is critical to improving how courts determine credibility so that they do not send asylum seekers back to the dangerous situations they fled.